Can I File For Custody Of My Children In Naples, Florida?

You might live in Florida.  Your ex might live in Florida.  Your children might live in Florida.  If all of you live in Florida, any case regarding the children can be filed and pursued in Florida.  If the children live in Naples, Florida then the case should be filed in Collier County, Florida.

If you, the other parent or the children do not live in Florida, there will be a question of whether you can file the case in Florida. Whether for convenience or strategic reasons, filing in Florida may be to your advantage. You should know if filing in Florida is an option for you.

If the child has always lived in Florida then the Florida has “exclusive jurisdiction” to enter or modify a custody judgment regarding that child.  Copas v. Copas, 687 So. 2d 885 (Fla. 2d DCA 1997)

If the child has lived in Florida for at least 6 months before the filing of the first petition for custody of the child, then that petition for custody can be filed in Florida.

But, if there was a previous custody order (not just a filed petition) in another state that other state will have the exclusive jurisdiction to modify that custody order.

Logically, though, if the child is now living in a different state than the state of his or her custody order, then the local state can exercise jurisdiction if an emergency comes up and can make emergency orders until the state with the custody jurisdiction can get involved at a time that is convenient to all parties.

All 50 states entered into a pact where they all adopted the Uniform Child Custody Jurisdiction Enforcement Act or the UCCJEA.   This act requires each state to acknowledge and give “full faith and credit” to all custody orders from outside the state.

The UCCJEA defines very specifically the concept of “the home state” or the state where the custody filings should be done.  The general rule is that filing for custody is appropriate in any state where the child has resided for more than 6 months.

If a child has been moved out of Florida and is residing in a new state but has not been living in that new state for more than 6 months, the home state is still Florida.  On the 183rd day of the move, though, the home state will switch to the new state.  So, file in Florida while you can.

The reverse is also true, a parent must wait until the child is in Florida for six months before filing a custody petition.

How do you determine if the child really moved or if the child was just “travelling”?  This question is very important because, in my experience, most jurisdiction fights happen when a parent takes a trip with the child and then decides to stay (this always happens over the summer).  The courts will look at the intent of the moving parent to determine when the six month clock starts ticking.  A visit will turn into a move the moment the parent intends that to be so.  Typically, this means a lease is signed or a house is purchased or the child is registered in a school in the new state.

Home state jurisdiction means that the parties have to keep returning to the home state to resolve any custody issues.  Home state jurisdiction only terminates automatically when neither of the parents or the child live in the home state anymore.

To move a case to Florida when the home state is another state, you must first go to the other home state and explain that Florida is what the new home state should be (because of the six month rule) and ask them to relinquish jurisdiction.  Usually, courts are happy to do this because it’s logical that a court closer to the child can best determine the child’s best interests.  But this is not automatic, the old home state court must decide.

If you want to enforce a custody order but the child now lives out of the old home state, you do not need to go to the old home state to ask for that enforcement.  The new state is obligated to enforce the old state’s orders under the UCCJEA.

If two parents file custody action in two different states, the UCCJEA requires the state where the filing was done first to be resolved before the next custody petition is heard.  The first state may very well say, “This should be handled in the next state.” But, the next state cannot preemptively say “Obviously, we should handle it.”  Another good reason to file a petition as quickly as possible..

If you’re ready to file, contact my Naples, Florida family law office and schedule a free consultation with an experienced family law lawyer.

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